Office of the Attorney General Fair Labor and Practices Division,

Richard W. Gleeson, Esq.

Karla Zarbo, Esq.

Office of the Attorney General, Fair Labor and Practices Division One Ashburton Place Boston, MA 02108

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION

The Office of the Attorney General ("OAG") issued nine citations against Storm Companies, Inc. d/b/a Premier Caulking ("Premier") and Steven Bissonnette for failure to pay prevailing wages to numerous employees on nine different public works projects in the Commonwealth. Premier and Bissonnette appealed, pursuant to G.L. c. 149, § 27C(b)(4). The parties elected to waive a hearing on the merits and elected instead to proceed on written submissions pursuant to 801 CMR 1.01(10)(c). On February 14, 2006, the OAG submitted its motion for summary decision and memorandum of law. On June 21, 2006, Premier and Bissonnette filed a cross-motion for summary decision and memorandum of law. The parties agreed to seventy-five stipulated facts. The record closed June 21, 2006.

A hearing on the motions was held on July 14, 2006 at the Division of Administrative Law Appeals (DALA), at 98 North Washington Street, Boston, Massachusetts. A written decision was issued on December 1, 2006 by then Chief Administrative Magistrate Christopher F. Connolly. The OAG timely appealed the decision to the Superior Court pursuant to G.L. c. 30A, § 14. George E. Noel, Director of the Department of Labor, and Robert J. Prezioso, Commissioner of the Department of Labor's Division of Occupational Safety, filed a motion to intervene in the Superior Court appeal on June 25, 2007, which was allowed, without opposition, by the Court on July 11, 2007.

On January 4, 2008, the Superior Court (Cratsley, J.) allowed the motions of the OAG and the Intervenors for judgment on the pleadings and remanded the case to DALA "for (1) rehearing and findings consistent with this opinion, or (2) findings based on the existing Administrative Record that are consistent with this opinion." On July 24, 2008, DALA allowed the OAG's motion for a speedy decision. Administrative Magistrate Connolly is no longer employed by DALA. Pursuant to 801 CMR 1.01 (11)(e), I have been appointed by Chief Administrative Magistrate Shelly Taylor to assume the case and render the post-remand decision.

Neither party has requested a rehearing, nor has either party asked permission to submit further evidence in light of the Superior Court's remand. I have determined that that all the evidence required to render the post-remand decision is already in the administrative record, and thus no rehearing is necessary.

ADDITIONAL FINDINGS OF FACT

Based upon the existing administrative record, I make the following additional findings of fact:

1. On December 20, 2002, the OAG's Fair Labor and Business Practices Division wrote a letter to Robert Prezioso, the Deputy Director of the Division of Occupational Safety (DOS) of the Department of Labor and Workforce Development, seeking the applicable occupational classification for workers who install various types of waterproofing and dampproofing materials on a public construction project.

2. Ronald E. Maranian, a Program Manager with the DOS, responded to the OAG's inquiry on January 9, 2003. He stated: "Based on the limited descriptions you provided, it appears that the activities in question all involve waterproofing work in association with masonry construction. If that is the case, you may want to consider using the 'Waterproofer' occupational classification contained in the wage schedules issued by DOS."

3. On February 9, 2004, the OAG's Fair Labor and Business Practices Division asked for further guidance, on behalf of Premier, from Lisa Price, Legal Counsel for DOS. Robert Gleeson, Premier's attorney was copied on the letter. This time, the OAG asked the DOS to determine whether some of the waterproofing work, including setting, unrolling and grinding waterproofing materials falls under the Laborer job classification or the Waterproofer classification.

4. On June 7, 2004, Robert J. Prezioso, Commissioner of the Division of Occupational Safety, answered the OAG's February 9, 2004 letter. Commissioner Prezioso advised that the Waterproofer occupational classification had been eliminated and replaced with two new occupational classifications: "Brick/Stone/Artificial Masonry (Incl. Masonry Waterproofing)" established from masonry collective bargaining agreements, and "Roofer (Incl. Roofer Waterproofing & Roofer Dampproofing)" established from roofers' collective bargaining agreements. He determined that the work described in the February 9, 2004 letter and earlier December 20, 2002 letter should be classified as either Waterproofer or Brick/Stone/ Artificial Masonry (Incl. Masonry Waterproofing), depending on which classifications were included in the wage schedules issued for each of the projects.

5. On June 29, 2004, the OAG wrote Commissioner Prezioso, seeking additional clarification concerning the applicability of appropriate occupational classifications to the work on projects performed by Premier.

6. Commissioner Prezioso responded on August 18, 2004. He determined that none of the work performed on the projects should be classified as the work of a Laborer. He further determined that waterproofing work on a roof should be classified as Roofer work, and any waterproofing work performed on other building components, such as walls, should be paid at the Bricklayer/Mason rate. "When waterproofing work is performed in areas located between the walls and a roof," he wrote, "either rate could reasonably apply. In that event, DOS reiterates its position that we will not choose between the higher and lower rate in classifying workers engaged in activities that fall under the jurisdictional ambit of two different unions."

7. Each of the general contracts for the nine projects included a separate filed sub-bid section for waterproofing/dampproofing work. The specifications describe the application and installation of waterproofing and dampproofing materials to masonry walls, as well as to foundations, both above and below grade, and interior and exterior partition walls. Additionally, the specifications called for waterproofing to the basement of the UMass Boston project and the application of caulking materials to window casings and door frames on four other projects. None of the specifications describe installation or application of waterproofing or dampproofing materials to a roof or any of its components.

8. None of the workers on any of the nine projects applied waterproofing materials to a roof or any area located between a wall and a roof.

9. The timely issued wage rate sheets for each of the nine projects included prevailing wages for "Bricklayer/Waterproofer" and "Roofer/Waterproofer/ Dampproofer" with no reference to a "Waterproofer" classification.

CONCLUSION AND ORDER

The Respondent's Motion for Summary Decision is allowed. The Petitioner's Motion for Summary Decision is denied. Premier's challenges to the prevailing wage civil citations are not challenges to the Attorney General's enforcement of the prevailing wage law; rather, they are challenges to the job classifications themselves, which are determined exclusively by the Commissioner. Any challenge to Commissioner-issued job classifications must be brought before the Commissioner. The jurisdiction of the Division of Administrative Law Appeals is limited to determining whether or not the citations were erroneously issued by the OAG. Based on the administrative record and the job classifications issued by the Commissioner, none of the nine citations was erroneously issued.

The prevailing wage law requires contractors and sub-contractors engaged in public works construction projects to pay certain workers-"mechanics and apprentices, teamsters, chauffeurs and laborers"-prevailing wages. G.L. c. 149, § 26; Teamsters Joint Council No. 10 v. Dir. of the Dep't of Labor & Workforce Dev., 447 Mass. 100, 102 (2006). It is the Commissioner's job to prepare a list of the jobs usually performed on public works projects. G.L. c. 149, § 27; Teamsters, 447 Mass. at 102. The Commissioner may revise the job classifications from time to time as he may deem advisable. G.L. c. 149, § 27. Prior to awarding a contract on a public works project, the awarding authority submits a list of jobs for which the prevailing wage must be paid; the Commissioner then determines the wage rate for each of the job classifications and issues a wage rate sheet for the project. Id. The job classifications and the wage rates for each classification are derived from local collective bargaining agreements in private industry. G.L. c. 149, § 26.

G.L. c. 149, § 27A provides an administrative mechanism for review of the Commissioner's wage determinations and job classifications. Teamsters, 447 Mass. at 102-03. At the conclusion of this administrative process, the decision of the Commissioner is final. Id. at 103. Because the prevailing wage law contains no provision for judicial review of the Commissioner's decisions, aggrieved parties may file an action in the nature of certiorari, pursuant to G.L. c. 249, § 4, if they wish to challenge any of the Commissioner's final decisions. Teamsters, 447 Mass. at 106; Felix A. Marino Co. v. Comm'r of Labor and Industries, 426 Mass. 458, 464.

While the Commissioner determines the job classifications and the corresponding prevailing wages, the Commissioner does not enforce the law; that task falls to the Attorney General. G.L. c. 149, §§ 26, 27. The Attorney General also enforces G.L. c. 149, § 27B, which requires contractors and subcontractors to keep accurate records of all covered employees, the hours they worked, and the pay they received and to furnish a copy of those records to the Attorney General upon request. The OAG may initiate criminal proceedings against any contractor who does not comply. G.L. c. 149, § 27C(a). In the alternative, the OAG may issue a written warning or a civil citation. G.L. c. 149, § 27C(b)(1).

Any person aggrieved by the OAG's enforcement of the prevailing wage law may file a notice of appeal with the OAG and DALA within ten days of receiving any citation or order. G.L. c. 149, § 27C(b)(4). DALA "may affirm or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued, vacate, or modify the citation or order." Id.

An important distinction must be drawn. DALA has appellate jurisdiction over only the Attorney General's enforcement of the law, and no appellate jurisdiction at all over the Commissioner's job classification and wage rate determinations. G.L. c. 149, §§ 27A, 27C; Office of the Attorney Gen., Fair Labor and Bus. Practices Div. v. Executive Office for Admin. and Fin., Div. of Admin. Law Appeals, No. 2006-5393, slip op. at 15 (Mass. Super. Ct. Jan. 4, 2008). In its remand in this case, the Superior Court was clear that "DALA's review [is] limited to whether citations or orders issued were erroneously issued."

Premier challenges the OAG's citations by arguing that the workers who installed the waterproofing materials could be paid as laborers because laborers in the private sector install waterproofing materials. In the alternative, Premier asserts that two of the Commissioner's job classifications used in issuing the citations are not accurate because they do not take account of the "overlapping jurisdiction" derived from examination of collective bargaining agreements of the Roofer and Bricklayer/Mason unions. Basically, both unions claim that some of the same waterproofing work is under their exclusive labor jurisdiction and can only be performed by their respective unions. Premier asserts that the Commissioner, therefore, had no authority to determine, in his August 18, 2004 letter, that waterproofing work performed on a roof should be paid the Roofers' rate and waterproofing work performed on other building components, such as walls, should be paid the Bricklayer/Mason rate. Citing an internal policy of the Commissioner, Premier further asserts that where both unions claim the same work, Premier should have been allowed to pay the lower roofers' prevailing wage for the work performed.

The parties do not dispute that none of the waterproofing work performed in the nine projects occurred on a roof; all of the work was performed on foundations or walls. Neither do the parties dispute any of the wage rate determinations or restitution calculations. The only dispute is over the Commissioner's job classifications. As noted above, DALA has no jurisdiction to hear an appeal of the Commissioner's job classifications. Any appeals of job classifications must instead follow the administrative procedure outlined in G.L. c. 149, § 27A, which requires Premier to appeal directly to the Commissioner. Premier may very well have a valid legal argument, but they cannot find the relief they are seeking at DALA.

Using the Commissioner's job classifications, which were not appealed to the Commissioner by Premier, the OAG issued nine citations to Premier charging them with improperly paying some of the workers at the Laborer rate and some at the Roofer rate, when all of them should have been paid at the Bricklayer/Mason rate. Premier has not shown by a preponderance of the evidence that the Attorney General's citations were erroneously issued; therefore, the citations are affirmed.

Finally, Premier challenges the penalties assessed against it by the OAG. Premier argues that it would be manifestly unreasonable to impose any penalties on Premier because, during the course of the investigation into the violations, the OAG "vacillated" between the Roofer and Bricklayer/Mason rates. The OAG imposed combined penalties of $6,910.00 for the violations on all nine projects. The Commissioner made his final classification determination on August 18, 2004. The OAG did not issue the citations until November 8, 2004, giving Premier several months to either appeal the Commissioner's job classifications or make the restitution payments. When considered in light of the administrative record and in relation to the restitution of $35,544.95 that was ordered, it cannot be said that a $6,910.00 penalty is unreasonable.

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